Her Complaint

Twen­ty years old, she’d worked as a sec­re­tary for Cam­bridge, Inc., a small mort­gage bro­ker­age firm, for only a month when she claimed the CEO sex­u­al­ly assault­ed her. He insist­ed he nev­er touched her.

“It’s a he-said-she-said sit­u­a­tion,” the office man­ag­er told her. “There’s noth­ing I can do.”

A few days lat­er, Cam­bridge fired her.

She filed suit, alleg­ing sex­u­al harass­ment, gen­der dis­crim­i­na­tion, and wrong­ful ter­mi­na­tion. My law firm rep­re­sent­ed Cam­bridge and I was assigned to defend the case.

Mar­garet, the office man­ag­er, in her for­ties, tall and thin with short coal-black hair, dressed in a dark blue skirt and match­ing jack­et, escort­ed me into the CEO’s office.

We sat down across the desk from Ted, in his mid-thir­ties, aver­age height with an ath­let­ic build, close-cropped brown hair, and a con­fi­dent demeanor. “I bare­ly remem­ber her,” he said. “We had no con­tact oth­er than the few times she brought me doc­u­ments to sign. I don’t even know when she claims I harassed her.”

“The morn­ing of July 12,” Mar­garet said.

“I under­stand she report­ed the inci­dent to you,” I said to Margaret.

“That’s cor­rect. She told me she was stand­ing beside Ted at his desk while he reviewed let­ters she’d typed when he grabbed her around the hips and shoved his hand up under her skirt.”

“Ridicu­lous,” Ted said.

“Any wit­ness­es?” I asked.

“They were alone. She said Ted told her to close his office door when she walked in.”

“That’s a lie,” Ted said. “She closed it on her own.”

Inter­est­ing, I thought. Ted doesn’t remem­ber when she claims the inci­dent took place, but he recalls she closed the door that morn­ing. “Did any­one see her when she came out of Ted’s office?”

“My office is across the hall,” Mar­garet said. “I saw her come out and run down the hall. She was sob­bing hys­ter­i­cal­ly. I found her in the women’s restroom. It took her a long time to calm down enough to tell me her ver­sion of what hap­pened. She was so upset I sent her home for the day.”

“The dis­charge let­ter says you fired her for insubordination.”

“Work­ing with Ted is a job require­ment. She refused.”

“Who made the deci­sion to fire her?”

Mar­garet looked at Ted.

“Mar­garet and I made the deci­sion togeth­er,” he said.

“What was the qual­i­ty of her work?”

“Excel­lent,” Mar­garet said. “She was fresh out of a good sec­re­tar­i­al school. Inex­pe­ri­enced, but high­ly skilled.”

I stud­ied Mar­garet. She returned my stare evenly.

“Give us a minute alone,” I said to her. She left the office.

“A pack of lies,” Ted said.

“She’s a good liar,” I said. “In the few sec­onds it took her to reach your office door, she burst into tears and kept it up until Mar­garet sent her home.”

“All part of an act designed to hit the law­suit lottery.”

“An Oscar-win­ning per­for­mance on the spur of the moment.”

“She prob­a­bly rehearsed it.”

“Twen­ty years old. First job after sec­re­tar­i­al school. Not the typ­i­cal pro­file of a con­niv­ing fraudster.”

Ted paused. “You don’t believe me?”

“I’m giv­ing you an objec­tive assess­ment of the facts. Margaret’s obser­va­tion of her behav­ior sup­ports her story.”

He gave me a blank stare.

“Tell me what real­ly hap­pened,” I said.

More of the blank stare. Then, “You can’t tell any­one what I say, right?”

“This is an attor­ney-client priv­i­leged con­ver­sa­tion. I can’t tell any­one with­out your permission.”

He smirked. “She’s got a killer body, and she knows it. When I walked by her desk in the sec­re­tar­i­al bay that morn­ing, she gave me a smile and a fetch­ing look. Ten min­utes lat­er, she showed up at my door wear­ing a short skirt and a tight blouse and stood right next to me while I reviewed her work. Her hip brushed against my shoul­der. It was an obvi­ous come-on, but when I tried to pull her down into my lap, she went crazy. Screamed and ran out of here like I’d tried to rape her or something.”

“Did you put your hand under her skirt?”

“I might have. I don’t recall. It was all over in a cou­ple of sec­onds. It was no big deal.”

“It seems to have been a big deal to her.”

“What did she expect? Dress­ing like that. Flaunt­ing it.”

I searched Ted’s face. Indif­fer­ence, with a hint of defi­ance. No shame. This is not going to be easy, I thought.

“She’s got a strong case,” I said. “We should set­tle it before her lawyer digs into the facts.”

Ted looked shocked. “She can’t prove any­thing. It’s her word against mine.”

“Your sto­ry isn’t cred­i­ble. Margaret’s putting up a good front, but she believes the plain­tiff. It took me less than ten min­utes of ques­tion­ing to see through your denial.”

“Okay. Let’s work on my sto­ry. Shore up the weak points.”

“That’s not an option. You’ll have to tes­ti­fy under oath.”

“So what? No one will know I’m lying.”

“You’ll know. I’ll know.”

“Well, I sure as hell won’t tell any­one and you can’t tell because you’re my lawyer.”

The Jury Will Believe Her

“If you get caught, you’ll face per­jury charges. It’s not worth the risk. Besides, the jury will like­ly believe her even if you lie. She’ll get back pay, com­pen­sa­tion for emo­tion­al dis­tress, puni­tive dam­ages. The judg­ment could reach six fig­ures, but if we don’t fight her claim and set­tle the case quick­ly, she’ll prob­a­bly walk away for a small pay­ment and a writ­ten recommendation.”

“How small?”

“Ten thou­sand. Maybe less.”

“Ten thou­sand dol­lars! For a two-sec­ond grab that went nowhere!”

“You’ll spend a lot more in court costs and legal fees defend­ing the case.”

“Fine. At least we’ll get some­thing for our mon­ey. I’m not pay­ing her a dime.”

I argued long and hard, but Ted wouldn’t budge, which put me in a tight spot. The canons of ethics pro­hib­it a lawyer from pre­sent­ing false evi­dence to the court, so I couldn’t know­ing­ly allow Ted to lie under oath. But the rules also pro­hib­it­ed my dis­clo­sure of his con­fes­sion to any­one, includ­ing the court. Under Cal­i­for­nia law, there was only one way to pro­tect both con­flict­ing inter­ests. I with­drew from the case with­out telling any­one what Ted had told me, and he hired a dif­fer­ent firm to defend the lawsuit.

I changed a few details and the names of the com­pa­ny and exec­u­tives, but oth­er­wise this nar­ra­tion tracks the fact-pat­tern of a case I worked on in the 1980’s.

I like this sto­ry. It makes me look good for doing the right thing, but the truth is it was an easy call. The fee to defend the case amount­ed to less than a drop in my firm’s buck­et of rev­enues; the client was a small com­pa­ny whose ongo­ing busi­ness was mean­ing­less to us; and Ted made my skin crawl. With­draw­ing required no real sac­ri­fice and no courage.

Bel­liger­ent Gen­er­al Counsel

About the time I with­drew from rep­re­sent­ing Cam­bridge, a lawyer in my firm draft­ed opin­ion let­ters con­cern­ing the like­li­hood of lia­bil­i­ty and poten­tial dam­age awards in cas­es she was han­dling for one of our biggest clients. Finan­cial laws required the client to dis­close the attorney’s esti­mates to cred­i­tors and share­hold­ers. Its Gen­er­al Coun­sel dis­agreed with her opin­ions. He demand­ed that she change them to down­play the risk of loss and reduce the poten­tial damages.

Eth­i­cal canons and fed­er­al laws require an attor­ney to ren­der hon­est and accu­rate opin­ions about such mat­ters. She gave the Gen­er­al Coun­sel the back-up data sup­port­ing her esti­mates and told him she couldn’t change them. He became bel­liger­ent and threat­ened to fire the firm from all his company’s legal mat­ters. She was shak­en but stood her ground.

Soon after­wards, the com­pa­ny declared bank­rupt­cy. Its debts and poten­tial lia­bil­i­ties far out­stripped its assets. We learned then that the Gen­er­al Coun­sel had pres­sured all its out­side law firms to change their opin­ions so it could take on more debt in a des­per­ate attempt to sur­vive. Some lawyers had com­plied. Their firms faced poten­tial fraud charges. Mine did not.

Hatred for Lawyers Dates Back Centuries

In pub­lic opin­ion sur­veys, lawyers rou­tine­ly rank at the bot­tom in pub­lic trust. There are good rea­sons for this. Sleazy lawyers abound and they tend to gar­ner a lot of pub­lic­i­ty, but I worked with legions of attor­neys of the high­est eth­i­cal char­ac­ter whose courage and con­vic­tion went unno­ticed in the pub­lic eye. My for­mer part­ner was at the top of that list.

I’d like to believe I was in her league, but I’ll con­fess I’ve often won­dered what I would have done if the con­text of my with­draw­al had been dif­fer­ent. Sup­pose Cam­bridge had been a For­tune 500 cor­po­ra­tion and one of the firm’s largest clients. Sup­pose Ted had threat­ened to fire my firm from all legal mat­ters if I with­drew. I’d like to think I would have been as strong as my part­ner, but I don’t know for sure. I wasn’t put to the test. She was, and her per­for­mance under immense pres­sure earned my ever­last­ing admi­ra­tion and respect.

Post Script: A year after I with­drew from the case that inspired this post, the plaintiff’s attor­ney told me my suc­ces­sor set­tled it on the eve of tri­al. He said the terms were con­fi­den­tial, but the huge smile on his face leads me to believe the com­pa­ny paid big bucks to get out of that mess.
The real Cam­bridge even­tu­al­ly filed for bank­rupt­cy. The CEO was the major­i­ty own­er, so the real Ted may have gone down with the ship. I hope so.